Wednesday, September 07, 2016

Theft of Services, the Fourth Amendment and the Cell Phone

In State v. Hill, 2016 WL 3751806 (Court of Appeals of Georgia 2016), James
Brandon Hill filed a motion to suppress evidence the prosecution intended to
use at his trial for theft of services. State
v. Hill, supra.

As Wikipedia explains, theft of services “is
the legal term for a crime which is committed when a person obtains valuable
services — as opposed to goods — by deception, force, threat or other unlawful
means, i.e., without lawfully compensating the provider for these services.”

The trial
court judge granted Hill’s motion, which effectively ended the prosecution . .
. until the prosecutor’s office appealed that ruling to the Georgia Court of
Appeals. State v. Hill, supra.

The Georgia
Court of Appeals began its opinion in the case by explaining that

[t]his case involves allegations that
James Brandon Hill committed misdemeanor theft of services in violation of
Georgia Code Annotated § 16-8-5 when he fled without paying a fare owed to
a taxi cab driver. The investigating officer found a cellular phone in the back
of the taxi cab and, by placing an emergency call from the phone, determined
that it belonged to Hill.

In a motion to suppress, Hill argued
that this constituted an illegal search of his phone in violation of the Fourth Amendment of the United States Constitution. The trial court granted Hill's
motion, and the state appeals. Because Hill had no reasonable expectation of
privacy in the information at issue—his own name, date of birth, and phone
number—we agree with the state there was no search under the Fourth Amendment,
and accordingly we reverse.

State v. Hill, supra.

The Court of Appeals also noted that
the "evidence in this case is not in dispute, and we review de novo the trial court’s application of
law to the undisputed facts. State v.
Hill, supra.The court went on to explain that the charge of theft of
services arose from Hill’s having

fled without paying a fare owed to a
taxi cab driver. The investigating officer found a cellular phone in the back
of the taxi cab and, by placing an emergency call from the phone, determined
that it belonged to Hill. In a motion to suppress, Hill argued that this
constituted an illegal search of his phone in violation of the Fourth Amendment
of the United States Constitution. The trial court granted Hill's motion, and
the state appeals.

State v. Hill, supra.

The Court of
Appeals’ opinion also notes that the

evidence in this case is not in
dispute, and we review de novo the trial court's application of law to the
undisputed facts. See Hughes v. State,
296 Ga. 744, 750, 770 S.E.2d 636 (2015). . A law enforcement officer, who
was the only witness at the hearing on Hill's motion to suppress, testified
that on June 1, 2014, he investigated a taxi cab driver's claim that a man had
fled without paying his cab fare. The man who fled had left a cellular phone in
the backseat of the cab. The officer turned on the phone but a passcode
prevented him from accessing any data contained therein. The officer, however,
was able to place an emergency call from the phone, and from that call a 911
dispatcher provided him with the number assigned to the phone and with Hill's
name and date of birth.

State v. Hill, supra.

The court
then took up the issue in the case, explaining that

Hill did not challenge the officer's
seizure of the phone found in the cab. See
generally Fair v. State, 284 Ga. 165, 174-175(3)(d), 664 S.E.2d 227 (Georgia Supreme Court 2008) (no
Fourth Amendment violation where officers seized items in plain view during
processing of crime scene); Peek v. State,
239 Ga. 422, 426, 238 S.E.2d 11 (Georgia Supreme Court 1977) (`It has long been settled that
objects falling in the plain view of an officer who has a right to be in the
position to have that view are subject to seizure and may be introduced in
evidence) (citation and punctuation omitted).

Instead, Hill argued in his motion to
suppress that the officer's act of calling 911 with the phone constituted an `illegal
search of [his] cellular phone for the purposes of ascertaining [his]
identity.’ In response, the state argued alternatively that the officer's act
did not constitute a `search’ within the meaning of the Fourth Amendment, and
that Hill had abandoned the phone by leaving it in the cab. The trial court
rejected both of the state's arguments and granted the motion to suppress. As
detailed below, the trial court erred in concluding that the officer's actions
were a Fourth Amendment search.

State v. Hill, supra.

The Court of Appeals then began its
analysis of the Fourth Amendment issue, explaining that the Fourth Amendment

provides the right of individuals to be
free from unreasonable searches and seizures. U.S. Const. Amend. IV. A
Fourth Amendment search occurs when a government official physically intrudes
or trespasses on a person's property. United
States v. Jones, 132 S.Ct. 945 (2012). This case does not involve such a
physical intrusion or trespass. A Fourth Amendment search also occurs `when the
government violates a subjective expectation of privacy that society recognizes
as reasonable.’ Kyllo v. United States,
533 U.S. 27, 33 (2001) (citation omitted). See
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
Conversely, a Fourth Amendment search does not
occur . . . unless the individual manifested a subjective expectation of
privacy in the object of the challenged search, and society is willing to
recognize that expectation as reasonable.’ Kyllo
v. United States, supra (citation and punctuation omitted).

In applying the subjective expectation
of privacy analysis to determine whether a Fourth Amendment search occurred, `it
is important to begin by specifying precisely the nature of the state activity
that is challenged.’ Smith v. Maryland,442 U.S. 735, 741 (1979). The challenged activity in this case is the law
enforcement officer's act of calling 911 from a cellular phone that was
lawfully in the officer's possession. This activity enabled a dispatcher to
determine the number assigned to the phone and the name and birthdate of Hill,
who was associated with that number. Thus, Hill's Fourth Amendment argument `necessarily
rests upon a claim that he had a ‘legitimate expectation of privacy’ regarding
[his phone number, name, and birthdate].’ Smith
v. Maryland, supra. We find that he had no legitimate expectation of
privacy in this information.

State v. Hill, supra.

The Court of
Appeals went on to explain that

[t]wo principles of Fourth Amendment
law lead to this result. First, as to communications, there is a `core
distinction: although the content of personal communications is private, the
information necessary to get those communications from point A to point B is
not.’ United States v. Carpenter, 819
F.3d 880 886 (U.S. Court of Appeals for the 6th Circuit 2016).
Consistent with this distinction, we have held in a case involving a landline phone
that the Fourth Amendment `protects only the content of a telephone
conversation and not the fact that a call was placed or that a particular
number was dialed.’ Stephenson v. State,
171 Ga. App. 938, 321 S.E.2d 433 (1984) (citation and punctuation omitted). . .
.

Second, `a person has no legitimate
expectation of privacy in information he voluntarily turns over to third
parties.’ Smith v. Maryland, supra.
This rule applies even where the person revealing information intended its use
by the third party to be limited. United States v. Graham, 2016
U.S. App. LEXIS 9797, *5 (4th Cir. 2016) (en banc). By using a phone, a person
exposes identifying information to third parties, such as telephone companies,
and assumes the risk that the telephone company may reveal that information to
the government. Smith v. Maryland, supra.
. . . Applying this principle to the act of law enforcement officers in
obtaining from a cellular phone the number associated with that phone, the
United States District Court for the Eastern District of Michigan held that `a
cell[ular] phone number fits into the category of information that is not
considered private and does not implicate the Fourth Amendment.’ United
States v. Sanford, 2013 U.S. Dist. LEXIS 73624, *3 (E.D. Mich. 2013).

State v. Hill, supra.

Since the Court of Appeals found
that “no Fourth Amendment search occurred in this case,” it reversed “the trial
court's grant of Hill's motion to suppress.”State v.
Hill, supra.

Since the
court reversed the lower court’s granting Hill’s motion, the prosecution was
then in a position to take the case to trial or engage in plea negotiations
with Hill. State v. Hill, supra.